Reconstruction and Resistance

Jack Balkin defies categorization. More precisely, he defies categories. His most recent books, Living Originalism and Constitutional Redemption, transcend the dichotomies of constitutional theory. Repeatedly, they show that what conventional wisdom views as a strict opposition (originalism versus the living constitution, for instance) is in fact not an opposition at all, or that a traditional taxonomic dyad (constitutional law and ordinary politics, for instance) is incomplete. His arguments are forceful, elegant, and, I believe, generally correct. Frequently, in fact, they bear the hallmark of truly deep insights: they seem obvious in retrospect. It is possible that these two books will mark a real advance in constitutional theory. But it is also possible that they will not. There are reasons that people cling to the theories and conceptual structures that Balkin undermines, and those reasons are not purely intellectual. There is a political element to constitutional law, of course; there is also a political element to constitutional theory. The presence of political considerations complicates the reception of any constitutional theory. Politics also complicates the theory itself. To Balkin’s credit, he acknowledges this. The books spend a substantial amount of time discussing how moral and political visions inform constitutional theory and become constitutional law. But they also argue for particular constitutional results, and this creates some tension within the enterprise. It is difficult for a single project, even one contained in two books, to employ both an internal and an external perspective—to explain how constitutional entrepreneurs succeed in making their views law and also to engage in the entrepreneurial venture. As